negotiated rulemaking | AnnaLeah & Mary

The current underride rulemaking was issued as a Notice of Proposed Rulemaking (NPRM) on December 16, 2015. Over four years ago. It’s time to take care of business. People continue to die horrific, violent, unimaginable underride deaths.

Is it time to move forward with negotiated rulemaking to hammer out practical, effective solutions for the deadly underride problem? Is it doable? Would this process enable us to overcome the stalemate between industry and safety advocates — to get the current underride rulemaking out of limbo?

NOTES ON NEGOTIATED RULEMAKING:

Declares that any agency may consult with the Administrative Conference of the United States and other individuals and organizations for information and assistance in forming a negotiated rulemaking committee and conducting negotiations.

Authorizes the Chairman of the Conference to pay, upon request of an agency head, all or part of the expenses of convening and conducting a negotiated rulemaking proceeding.

{NOTE: Apparently, this ability was later taken away from the ACUS and they are no longer able to assist in this way with negotiated rulemaking. Oh, well. Back to SQUARE ONE!}

Read more here: Negotiated Rulemaking Act of 1990

The negotiated rulemaking process is unique in several ways from both listening sessions and advisory committees. . . a negotiated rulemaking committee’s goal is to make binding, enduring decisions that will resolve the underlying issues and, if present, disputes.

Compared to participation in hearings/meetings and advisory committees, the role of non-Agency participants in interacting with the Agency through the negotiated rulemaking process is often far more robust, expansive, and issue-focused.

NOTE: And this could legitimately be done to update the NPRM on rear guards (which is in limbo) into a SUPPLEMENTAL RULEMAKING.

An SNPRM may be issued if a proposed rule has been substantially changed from the original notice of proposed rulemaking. The supplemental notice advises the public of the revised proposal and provides an opportunity for additional comment. To give the public a reasonable opportunity to become reacquainted with a rulemaking, a supplemental notice may also be issued if considerable time has elapsed since publication of a notice of proposed rulemaking. An SNPRM contains the same type of information generally included in an NPRM. § 1.05-40 Supplemental notice of proposed rulemaking (SNPRM).

What are we waiting for?

The AnnaLeah & Mary Stand Up For Truck Safety Petition was delivered to DOT on May 5, 2014 — one year after our crash. It called for comprehensive underride rulemaking. We’ve uncovered a lot more information since then; we’re well-equipped to participate in this process. Let’s get on with it.

It is my hope that we can pursue a recommendation, made by a participant of the Underride Roundtable during the afternoon panel discussion, and organize a group of affected individuals and organizations/companies to meet together and develop a proposal to take to NHTSA in order to bring about a comprehensive negotiated rulemaking.

I am willing to do the organizing necessary to bring this meeting about. First of all, we need a location for the meeting and therefore I am asking if anyone would like to step forward and host this Negotiated Rulemaking Underride Roundtable. Once that is arranged, then we can proceed with selecting a date, developing an agenda, and sending out the notice.

After our family was instrumental in getting underride rulemaking initiated in July 2014, I realized that, though we had made it over one hurdle, in reality the battle had only begun. I became concerned that the cost/benefit analysis, which had so often compromised past underride rulemaking, was still a very real threat.

Earlier this week, I wrote a post explaining why I think that a negotiated rulemaking process could be important in overcoming compromise and a possible stalemate (“a situation in which further action or progress by opposing or competing parties seems impossible.”): Is Cost/Benefit Analysis Appropriate for Life & Death Matters? Were their lives worth saving?

The participants, of the May 5, 2016, Underride Roundtable at IIHS, would be qualified to help meet the mandate given to NHTSA to prepare a thorough Cost Effectiveness Analysis (CEA) of the underride issue: The Office of Management and Budget (OMB) recently issued Circular A-4 guidance on regulatory analyses, requiring federal agencies to “prepare a CEA for all major rulemakings for which the primary benefits are improved public health and safety to the extent that a valid effectiveness measure can be developed to represent expected health and safety outcomes.” Appendix G–Health Based Cost Effectiveness Analysis.pdf

A Negotiated Rulemaking Underride Roundtable could provide a format for development of a more effective and comprehensive underride rule, which would cover all the bases with existing and proposed technology to save as many lives as is humanly possible. It would also get the manufacturing companies out of limbo so that they can make long-term plans and move forward with designing and producing safer products. Win/Win. N’est-ce pas?

Now that the formal comment period is over for the NPRM on Rear Underride on Trailers, the next step is for NHTSA to review the comments and develop a final rule. Let’s strike while the iron is hot and present them with a unified recommendation to enhance their efforts. Before it’s too late.

Let’s send the message to NHTSA that we are all willing to do the work to bring about an acceptable, all-inclusive underride rule.